One of the major trends in recent years in employment discrimination law has been the lowering of the standard required for a plaintiff to demonstrate a hostile and offensive working environment based on race or sex. Federal courts now routinely find behavior as reaching this level that would have been rejected as insufficiently offensive a few years ago. Last month the Third Circuit Court of Appeals made an exception to this trend, finding that comments made in the context of a co-worker dispute over the terms of a collective bargaining agreement failed to reach this standard.

In Chinery v. American Airlines, the plaintiff ran for president of the local flight attendants’ union, basing her campaign in part on her opposition to the current CBA. She claimed that a group of flight attendants began harassing her on Facebook, posting profane comments and pictures that she took as insulting her gender. She filed a harassment complaint with American, which investigated but took no action with regard to the claims. She then sued American, alleging gender harassment under Title VII.

The Third Circuit affirmed dismissal of the lawsuit on summary judgment. The court did not even reach the question of whether American was legally responsible for harassment in the context of co-workers engaging in a disputed union election. Instead, the court concluded that the alleged Facebook comments were neither severe nor pervasive enough to constitute actionable harassment under Title VII. While acknowledging the insulting nature of some of the comments, they were isolated and only made in the context of social media postings.

The Third Circuit’s reasoning appears closer to older case law that required truly severe behavior to bring a Title VII harassment claim. This decision leaves employers wondering whether the same legal test would be used in a situation where employees were simply bullying a co-worker on social media due to her gender or appearance. Did the union angle to the complaint affect the judges’ perception of the employer’s responsibility for the behavior? For now, employers (at least those in Pennsylvania, New Jersey, Delaware, and the Virgin Islands) have grounds to argue that social media harassment alone may not be enough to find the employer liable.